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Landscape Maintenance Agreement 2023-01686996/28/23, 11:07 AM Batch 15928019 Confirmation RECORDING REQUESTED BY: CITY OF POWAY WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P O BOX 789 POWAY, CA 92074 APN: 277-171-22 & 277-171-18 DOC# 2023-0168699 1 IIIIII 1111 IIIII IIIII ���� ������ ����� ����� IIIII IIIII HII IIIII IIII IIII Jun 28, 2023 10:45 AM OFFICIAL RECORDS JORDAN Z. MARKS, SAN DIEGO COUNTY RECORDER FEES: $35.00 (SB2 Atkins: $0.00) PAGES: 8 SPACE ABOVE THIS LINE FOR RECORDER'S USE LANDSCAPE MAINTENANCE AGREEMENT SAGE AT OLD COACH This LANDSCAPE MAINTENANCE AGREEMENT ("Agreement") for the maintenance of certain landscape improvements ("Landscaping") along sections of the public right-of-way known as Espola Road, Old Coach Road, and Westling Court, is entered into between New Pointe Investment 52 LLC, ("OWNER") and the City of Poway ("CITY"). The maintenance areas subject to this agreement are as depicted in Exhibit "A." WHEREAS, OWNER is the owner of certain real property located in the City of Poway, California, more particularly described in Exhibit "B" ("PROPERTY"). The PROPERTY is being developed into a planned development project as defined by California Civil Code Section 4175, pursuant to Resolution No. 21-099 of the City Council of the City of Poway approving Tentative Tract Map 21-004. The project will consist of six residential lots as shown in the Tentative Tract Map. WHEREAS, OWNER has submitted to the CITY landscape plans ("LP 23-0008") which includes the Landscaping to be maintained along Espola Road pursuant to this Agreement. WHEREAS, the Landscaping will be maintained by the OWNER. It is the purpose of this Agreement to assure that the Landscaping is maintained, by creating obligations that are enforceable against the OWNER. It is intended that these obligations be enforceable by the CITY. NOW, THEREFORE, for consideration of (a) CITY's approval of the above development applications and (b) the mutual covenants set forth herein, IT IS HEREBY AGREED AS FOLLOWS: Landscape Maintenance Agreement. Owner shall comply in all respects with the requirements of the approved LP23-0008 plans and in particular agrees to perform, at its sole cost, expense and liability, the following "MAINTENANCE ACTIVITIES": all necessary inspections, cleaning, repairs, servicing, maintenance, replacement of plants, and other actions with respect to all of the Landscaping within the median of, and along Espola Road, without request or demand from CITY or any other agency. CITY's Right to Perform Maintenance. It is agreed that CITY shall have the right, but not the obligation, to elect to perform any or all of the MAINTENANCE https://gs.secure-recording.com/Batch/Confirmation/15928019 1 /2 RECORDING REQUESTED BY: CITY OF POWAY WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P O BOX 789 POWAY, CA 92074 SPACE ABOVE THIS LINE FOR RECORDER'S USE APN: 277-171-22 & 277-171-18 LANDSCAPE MAINTENANCE AGREEMENT SAGE AT OLD COACH This LANDSCAPE MAINTENANCE AGREEMENT ("Agreement") for the maintenance of certain landscape improvements ("Landscaping") along sections of the public right-of-way known as Espola Road, Old Coach Road, and Westling Court, is entered into between New Pointe Investment 52 LLC, ("OWNER") and the City of Poway ("CITY"). The maintenance areas subject to this agreement are as depicted in Exhibit "A." WHEREAS, OWNER is the owner of certain real property located in the City of Poway, California, more particularly described in Exhibit "B" ("PROPERTY"). The PROPERTY is being developed into a planned development project as defined by California Civil Code Section 4175, pursuant to Resolution No. 21-099 of the City Council of the City of Poway approving Tentative Tract Map 21-004. The project will consist of six residential lots as shown in the Tentative Tract Map. WHEREAS, OWNER has submitted to the CITY landscape plans ("LP 23-0008") which includes the Landscaping to be maintained along Espola Road pursuant to this Agreement. WHEREAS, the Landscaping will be maintained by the OWNER. It is the purpose of this Agreement to assure that the Landscaping is maintained, by creating obligations that are enforceable against the OWNER. It is intended that these obligations be enforceable by the CITY. NOW, THEREFORE, for consideration of (a) CITY's approval of the above development applications and (b) the mutual covenants set forth herein, IT IS HEREBY AGREED AS FOLLOWS: Landscape Maintenance Agreement. Owner shall comply in all respects with the requirements of the approved LP23-0008 plans and in particular agrees to perform, at its sole cost, expense and liability, the following "MAINTENANCE ACTIVITIES` all necessary inspections, cleaning, repairs, servicing, maintenance, replacement of plants, and other actions with respect to all of the Landscaping within the median of, and along Espola Road, without request or demand from CITY or any other agency. 2. CITY's Right to Perform Maintenance. It is agreed that CITY shall have the right, but not the obligation, to elect to perform any or all of the MAINTENANCE ACTIVITIES if, in the CITY's sole judgment, OWNER has failed to perform the same. Such maintenance by the CITY shall be conducted in accordance with the nuisance abatement procedures set forth in Poway Municipal Code Chapter 8.72. In the case of maintenance performed by the CITY, it may be performed by CITY itself, or a contractor hired by the CITY, at the CITY's sole election. It is recognized and understood that the CITY makes no representation that it intends to or will perform any of the MAINTENANCE ACTIVITIES, and any election by CITY to perform any of the MAINTENANCE ACTIVITIES shall in no way relieve OWNER of their continuing maintenance obligations under this agreement. If CITY elects to perform any of the MAINTENANCE ACTIVITIES, it is understood that CITY shall be deemed to be acting as the agent of OWNER and said work shall be without warranty or representation by CITY as to safety or effectiveness, shall be deemed to be accepted by the OWNER "as is", and shall be covered by OWNER indemnity provisions below. If CITY performs any of the MAINTENANCE ACTIVITIES, after CITY has demanded that OWNER perform the MAINTENANCE ACTIVITIES and the OWNER has failed to do so within a reasonable time stated in the CITY's demand, then OWNER shall pay all of CITY's costs incurred in performing the MAINTENANCE ACTIVITIES, plus an administrative fee. The OWNER's obligation to pay CITY's costs of performing MAINTENANCE ACTIVITIES is a continuing obligation. If OWNER fails to pay CITY's costs for performing MAINTENANCE ACTIVITIES, CITY may assess a lien on the property or properties of the responsible parties pursuant to the procedures set forth in Poway Municipal Code Chapter 8.72. 3. Administration of Agreement for CITY. CITY hereby designates the City Engineer or its agent as the officer charged with responsibility and authority to administer this Agreement on behalf of CITY. Any notice or communication to the City related to the implementation of this Agreement shall be addressed to: City Engineer City of Poway 13325 Civic Center Drive Poway, CA 92064 4. Defense and Indemnity. CITY shall not be liable for, and OWNER shall defend and indemnify CITY and the employees and agents of CITY (collectively "CITY PARTIES"), against any and all claims, demands, liability, judgments, awards, fines, mechanic's liens or other liens, labor disputes, losses, damages, expenses, charges or costs of any kind or character, including attorneys' fees and court costs (hereinafter collectively referred to as "CLAIMS"), related to this Agreement and arising either directly or indirectly from any act, error, omission or negligence of OWNER, its contractors, licensees, agents, servants or employees, including, without limitation, claims caused by the concurrent negligent act, error or omission, whether active or passive, of CITY PARTIES. OWNER shall have no obligation, however, to defend or indemnify CITY PARTIES from a claim if it is determined by a court of competent jurisdiction that such claim was caused by the sole negligence or willful misconduct of CITY PARTIES. Nothing in this Agreement, CITY's approval of the development application or plans and specifications, or inspection of the work is intended to acknowledge responsibility for any such matter, and CITY PARTIES shall have absolutely no responsibility or liability therefore unless otherwise provided by applicable law. 5. Agreement Binds Successors and Runs With the PROPERTY. It is understood and agreed that the terms, covenants and conditions herein contained shall constitute covenants running with the land and shall be binding upon the heirs, executors, administrators, successors and assigns of OWNER and CITY, shall be deemed to be for the benefit of all persons owning any interest in the PROPERTY (including the interest of CITY or its successors in the easement granted herein). It is the intent of the parties hereto that this Agreement shall be recorded and shall be binding upon all persons purchasing or otherwise acquiring all or any lot, unit or other portion of the PROPERTY, who shall be deemed to have consented to and become bound by all the provisions hereof. 6. OWNER's Continuing Responsibilities Where Work Commenced or Permit Obtained. Notwithstanding any other provision of this Agreement, no transfer or conveyance of the PROPERTY or any portion thereof shall in any way relieve OWNER of or otherwise affect OWNER's responsibilities for installation or maintenance of LANDSCAPING which may have arisen under the ordinances or regulations of CITY referred to in this Agreement, or other federal, state or CITY laws, on account of OWNER having obtained a permit which creates such obligations or having commenced grading, construction or other land disturbancework. ' 7. Amendment and Release. The terms of this Agreement may be modified only by a written amendment approved and signed by the Director of Development Services acting on behalf of CITY and by OWNER. This Agreement may be terminated, and the parties may be released from the covenants set forth herein, by a release, which CITY may execute if it determines that another mechanism, which may include the establishment of a Landscape Maintenance District, will assure the ongoing maintenance of the LANDSCAPING or that it is no longer necessary to assure such maintenance. 8. Governing Law and Severability. This Agreement shall be governed by the laws of the State of California. Venue in any action related to this Agreement shall be in the Superior Court of the State of California, County of San Diego. OWNER hereby waives any right to remove any such action from San Diego County as is otherwise permitted by California Code of Civil Procedure Section 394. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity, and enforceability of the remaining provisions shall not be affected thereby. 9. Attorney's Fees. The prevailing party in any action or proceeding to enforce or interpret the terms of this Agreement shall be entitled to recover all of its reasonable litigation expenses, including its expert fees, attorneys' fees, courts costs, arbitration costs, and any other fees. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth hereinafter. New Pointe 52, LLC _ -- Date: Tyler Sandstrom Vice President CITY OF POWAY: 1041a4' 11,L) o ert J. Man s Director of Development Services APPROVED AS TO FORM: Office of the City Attorney Alan Fenstermacher City Attorney Date: 2, / r,3 APPROVED AS TO CONTENT: Engineering Division -c- - - --1.,,7 8Trac B ach, P.E. City Engineer CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 r� r� oc �accr� r�"r�rccmt �c rrcv���rcc roe t� Frc rc�c rnoccrcrc crir�vd A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of San Diego ) On June 27, 2023 Date personally appeared _ before me, Yvonne Mannion, Notary Public Here Insert Name and Title of the Officer Tyler Sandstrom Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. YVONNE MANNION a ` = Notary Public - California San Diego county 3 Signature M Commission N 2363699 I Signature of Notary Public ^" y Comm. Expires Jul 1, 2025 // v G Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Landscape Maintenance Agreement Sage at Old Coach Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator F-1 Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ©2016 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 r,�,��c��ss:a�c�.�,�•-Vox-:r.�r,�,� �;�:rsc�r.�c+,-�,��s�c,�,�-�cu-c.�-c,.�-�,��s �r,�r.�=�s�,c�c,.rnno,�c,�r.��;�r,F;crr,�-,c�,�r,�. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of San Diego ) On June 19, 2023 Date personally appeared before me, Yvonne Mannion, Notary Public Here Insert Name and Title of the Officer Robert J. Manis Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. YVONNE MANNION IaMy Notary Public • California San Diego County Commission # 2363699 Comm. Expires Jul 1, 2025 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature vv ,t,._ cl c9 /1 AI" J Signature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Landscal Document Date: Signer(s) Other Than Named Above: maintenance Agreement Sa Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator n nthPr- Signer Is Representing: at Old Coach Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator n nthPr- - Signer Is Representing: ©2016 National Notary Association • www.Nationa[Notary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT Q U Q O IL U) w P z :Do N C W G H (n O W w 0 zoN W aQ Z O �m0 O W0Z z�< w 4 U y m z CL U) W cc z z W Z_ Q 2 z O U O U) Q LEGAL DESCRIPTION OF PROPERTY REAL PROPERTY IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: THE REMAINDER PARCEL IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA AS SHOWN ON PARCEL MAP 17433, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON OCTOBER 14, 1994 AS FILE NO. 1994-0605766 OF OFFICIAL RECORDS. EXCEPTING THEREFROM THAT PORTION LYING WITHIN PARCEL A OF CERTIFICATE OF COMPLIANCE BOUNDARY ADJUSTMENT NO. BA 94-08, RECORDED FEBRUARY 16, 1995 AS FILE NO. 1995-0071138 OF OFFICIAL RECORDS. APN: 277-171-18-00 AND 277-171-22-00